Arizona Criminal Defense Attorney Blog

July 25, 2016

Entrapment: The Most Important Requirement for Your Defense Revealed

Arizona Supreme Court Limits Use of Entrapment Defense in Cocaine Case

by James E. Novak, P.L.L.C.

Is this too difficult to imagine?

You’ve just been released from prison. You are struggling to become a productive member of society.

You’re looking for job, and trying to get your life on back on track.

So far, no employer has been willing to hire you, due to your criminal record.

You’ve sold nearly everything you own, including your car to pay outstanding debts, and to try and make ends meet.

Day after day you wait for the bus to take you to town so you can continue your job search.

Then one day, you are approached by a man while waiting for your bus. The man asks you if you will purchase $20.00 of crack cocaine. He offers to pay you $10.00 to do the deal.

You hesitate, and think that selling drugs again was the last thing you ever intended to do.

Weary, desperate, and hungry, you err in judgement and agree.

The man takes you to buy the drugs from an acquaintance. You buy the cocaine for him. You give him the cocaine, and he pays you.

Following the exchange of drugs and money, the man immediately arrests you.

You now face returning to prison, and serving 8 to 10 more years for selling illegal drugs while on parole.

The man who approached you at the bus stop was an undercover police officer. You were clearly entrapped.

But you will not have a chance to gain an acquittal based on the entrapment defense, without doing this one very important thing…

That is, if you wish to challenge the charges by utilizing the entrapment defense, you must admit to the substantial elements of the crime.

In simple terms, you will need to admit that you committed the criminal act for which you were charged.

You are confused by this. It goes against everything you understood about your 5th Amendment rights and protections against self-incrimination. So you do not admit to the crime.

But the fact is, it doesn’t matter how much police deception or inducement was involved. Unless you are prepared to formally admit to the substantial elements of the crime, either in testimony or stipulation, the entrapment defense will not apply.

You are convicted and sentenced to return to prison to serve 9 more years. Your freedom was short lived.

Not only is this scenario imaginable, but the the high court of Arizona recently heard a case with similar circumstances. This statutory requirement was affirmed in that case.

The Arizona Supreme Court held that the entrapment defense afforded under A.R.S. 13-206, is reserved for cases in which the defendant admits to the substantial elements of the crime.

In this article we examine the often misunderstood entrapment defense, and include the following featured topics:

Overview of recent Arizona Supreme Court ruling in a cocaine case;
7 questions and answers regarding application of the entrapment defense;
The requirements of making a valid entrapment claim in Arizona;
The burden of proof for entrapment;
Arizona entrapment law A.R.S. 12 – 206;
10 other drug crimes defenses besides entrapment;
Criminal defense for drug charges in Phoenix AZ

July 4, 2016

How to Avoid Dangers of High BAC and Extreme DUI in Summer Months

20 Alcohol & DUI Safety Tips; 7 Facts about high BAC; Arizona’s Extreme DUI Laws; Penalties; and Criminal Defense in Arizona

by James E. Novak, P.L.L.C.

Summer holds inherent risks of danger for outdoor drinking because the sun increases the effects of alcohol.

Heavy drinking combined with excessive sun exposure causes fluid loss, fatigue, dehydration, exhaustion, severe sunburn, alcohol poisoning, and impaired driving charges.

Other potential injuries and criminal charges occur as a result of excessive drinking including auto, boating, ATV, or motorcycle crashes; burns, drownings, assaults and violent crimes and DUI charges.

In Arizona high BAC levels call for harsh penalties in the event of a conviction. This article will provide insight into Arizona laws and penalties for Extreme DUI and Super Extreme DUI charges.

7 Facts about Excessive Drinking During Summer Months
20 Alcohol Consumption and DUI Safety Tips
Arizona Extreme & Super Extreme DUI Laws and Penalties
Criminal Defense for Extreme and Super Extreme DUI in Mesa AZ

June 26, 2016

Stalking Laws: 7 Myths and Facts

Arizona's Stalking Laws and Legislative Changes under HB 2419

by James E. Novak, P.L.L.C.

The Governor of Arizona recently signed HB 2419 into law amending Arizona’s stalking law A.R.S. section 13-2923.

The new law makes it easier for individuals to be arrested and charged with stalking.

Under the amendment, persons are exposed to significant penalties for a wider range of conduct.

This article includes discussion on the following topics:

Arizona stalking laws: myths v. facts;
Traditional stalking law before the HB 2419;
Provisions under HB 2419;
Penalties for stalking; and
The burden of proof and criminal defense

June 7, 2016

Ignition Interlock Device No Longer Required Drug DUI Penalty in Arizona

A Comprehensive Overview of Arizona’s Ignition Interlock Program & Legislative Changes

by James E. Novak, P.L.L.C.

Arizona drivers currently found guilty of DUI charges are required to install and use an ignition interlock device (IID).

It doesn’t matter that their DUI did not involve alcohol. It doesn’t’ matter that they never used alcohol a day in their lives.

Requiring a person convicted of a drug DUI to install and submit to an IID screening before they can start their vehicle, never made a lot of sense.

This was particularly true if the driver didn’t drink alcohol, considering that current IID technology does not allow for detection of drugs in a person’s body.

Current IID technology is limited to detection of spirituous liquor on a person’s breath during exhalation.

It may have served a punitive purpose; but it did nothing to prevent a driver from driving impaired due to drugs.

This however, is about to change.

Arizona’s SB 1228 has passed. It will allow for judges to have some discretion as to whether or not to impose installation and use of an IID for Drug DUI convictions.

This article provides a comprehensive look at Arizona’s Ignition Interlock Device Program and other related topics included:

Overview of Arizona SB 1228
Ignition Interlock Devices used in DUI Sentencing
Arizona Removes Ignition Interlock Device Requirement for Drug DUI
How the new law will Impact Arizona Drivers
Driver Obligations for Use and Reporting of Ignition Interlock Device
10 Frequently Asked Questions about Arizona DUI IID Program
DUI Classifications, Penalties & Criminal Defense Mesa AZ

May 21, 2016

Arizona Supreme Court Rules on Voluntariness of Consent in DUI Testing Case

Voluntariness VS. Submission to Lawful Assertion by Authority

by James E. Novak, P.L.L.C.

In the recent ruling the Arizona Supreme Court considered a Fourth Amendment issue and Arizona’s implied consent law in DUI case.

The cases centered around two primary issues. The first was whether or not consent to a warrantless search to conduct DUI breath and blood tests were voluntary, after suspect agreed to submit to them only after the officer instructed him repeatedly about the law.

The next question for the court was whether or not the advisement by the police officer was given in good faith when the officer believed that his conduct was lawful and not in violation of the suspect’s 4^th Amendment rights.

This article provides a case overview, legal principles that applied, and the additional related resource information:

Impact of Ruling on Arizona Drivers;
Good Faith Exception to the Exclusionary Rule;
Arizona Courts on what Constitutes Voluntary Consent to Search;
Answers to the question surrounding “Should I consent to a DUI Test in Arizona?”;
10 Common Defenses for DUI Charges in Arizona

March 31, 2016

Your Right to Request Change of Judge in Arizona Criminal Court

Criminal Defense Challenges for Prohibited Possession of Firearms Charges in Arizona

by James E. Novak, P.L.L.C.

Questions before the Court

The Arizona Rules of Criminal Procedure afford parties the right to request a change of judge before trial. But these rights are not without limitations.

In a recent case, an Arizona appellate court reviewed a defendant’s conviction for misconduct involving weapons. The appeal centered around two arguments, one being the defendant’s request for a new judge.

First, defendant had requested a peremptory change of judge under Arizona Rule of Criminal Procedure 10.2, which was denied by the trial court.

Secondly, the defendant challenged the sufficiency of the evidence used to obtain the conviction.

In this article we will also, take a closer look at the arguments, and summarize three concepts related to the Rules of Criminal Procedure for trial, which were addressed in this case:

The Right of the Parties to Request Change of Judge;
Special Actions v. Direct Appeals; and
Judgement of Acquittal

We will also discuss the proceedings, final ruling, the right to bear arms, procedural and evidentiary challenge in trial, and criminal defense for weapons charges.

March 18, 2016

Fentanyl – Laced Heroin: The Real Cost of a $10.00 High

Your Guide to Understanding Risks and Consequences of Fentanyl-laced Heroin

by James E. Novak, P.L.L.C.

Imagine the lethal game of “Russian Roulette”, but with different rules of chance.

Let’s say the chambers in a revolver with 6 rounds are all loaded with bullets, with the exception of only one chamber.

As if the risks weren’t enough in the traditional game. They just increased drastically.

Now it means there is an only one in six chance you will survive the game, instead of a 5 in six chance of survival.

That leaves the player with less than 17% chance of survival, and an 83% chance of fatality.

Those are near the same odds of fatality when a person uses heroin laced with the super opiate known as Fentanyl.

Officials in Arizona as well as other parts of the country are on high alert as it leaves a path of fatalities and grieving families to mourn the loss of loved ones.

The Centers for Disease Control collected data that concluded that over the last 15 years, overdose deaths involving prescription and illicit opioid overdose deaths surged, and that this spike was largely driven by heroin.

In this article we will discuss the following topics intended to raise awareness and to provide general resource information. Topics include:

Fentanyl & Signs of Fentanyl Overdose
Fentanyl Laced – Heroin – A Lethal Mix
Fentanyl – Laced Heroin Law Enforcement Seizures, and Trends
Narcotic Laws and Penalties including Fentanyl –Laced Heroin in Arizona
Good Samaritan Laws: Proposed Legislation
How to Detect Heroin Laced Fentanyl
Arizona Criminal Defense for Narcotic Drug Crimes

February 11, 2016

Right to Counsel before DUI Breath Test

Arizona Court of Appeals considers reasonableness in accommodating suspect’s request for counsel before breathalyzer test.

by James E. Novak, P.L.L.C.

If you are arrested for a DUI, you have a right to request an attorney’s assistance right away. But how much time are you given to find an attorney before you are given a Breathalyzer?

In a recent Arizona Court of Appeals case, the defendant was convicted of aggravated DUI, for driving while impaired with a license that was suspended or revoked.

The Defendant appealed the convictions with several challenges. The central argument was that the trial court had erred in denying his motion to suppress the results of a breathalyzer test due to being deprived of his right to counsel.

February 5, 2016

Consent to search, includes Drug K-9 search of Vehicle

Arizona Court of Appeals Upholds K-9 Search of Vehicle; Police not required to advise that Drug K-9 will be used with Voluntary Consent; Your Rights in Vehicle Searches Q & A

by James E. Novak, P.L.L.C.

In a recent case ruling the Arizona Court of Appeals upheld a woman’s conviction for possession for sale of methamphetamine and drug paraphernalia.

The central issue in the Appeal was whether or not a K-9 drug search of her vehicle was within the scope of a voluntary consent to search she agreed upon.

Case Facts and Court Opinion

The case arose when an officer stopped the defendant for a cracked windshield and speeding. The officer issued a written warning and a repair warning.

Following the issuance of citations, the officer asked the driver if he could search the vehicle.

The driver answered yes. The officer then gave her a consent-to-search form that was written in both English and Spanish. The officer and the driver conversed in English.

The form the officer gave her was written in both English and Spanish.

The suspect read and signed the Spanish portion of the consent form. The officer asked her if she understood what she had signed. She acknowledged that she understood.

The consent-to-search form which the driver signed was central to this ruling. With it, she consented to the following terms:

She could refuse to have her vehicle searched;
She could withdraw her consent to search at any time;
Evidence found during the search could be used against her in court;
The consent did not include property of other passengers in the vehicle.

Following the signing and affirmation of consent, the officer instructed the suspect and the passengers to leave the car and stand 20 feet away.

The officer then went to retrieve his drug K-9 from the patrol car to conduct a search of the suspect’s vehicle.

The officer would later testify that the defendant was standing where she could see him remove the K-9 from the car.

The suspect did not say anything to the officer at that time. She did not object to the K-9 search, or withdraw her consent at any point during the K-9’s search.

The vehicle’s exterior with the K-9, did not elicit an alert. However, upon investigation of the interior, the dog directed a positive response at a purse on the driver’s seat.

The dog went back to the patrol car, and the officer searched the purse. The officer found methamphetamine (meth) inside the purse. The suspect confirmed that the purse with the meth inside belonged to her.

The defendant filed a motion to suppress the evidence. She argued that seizing the methamphetamine was a Fourth Amendment violation because the K-9 search was outside the scope of her consent.

The trial court found that Continue reading

January 23, 2016

What Constitutes “Conspiracy” using mobile devices in Unlawful Drug Sales

Arizona Court of Appeals: No "conspiracy" without evidence of electronic communication with anyone else besides buyer and seller

by James E. Novak, P.L.L.C.

In a recent Arizona Supreme Court drug case, a man convicted of 11 drug-related crimes was sentenced to concurrent, consecutive presumptive terms of imprisonment.

The defendant appealed, challenging five convictions related to violations of A.R.S. § 13-3417(A) to facilitate or conspire to commit felony drug crimes.

In this article we provide an overview of the case and the Appeals Court Ruling; how it impacts Arizona; and privacy rights v. the public safety debate of cell phone searches.

This article also includes a special featured segment by Scott Greene, Senior Technology Forensics Expert, who will provide additional insight into cell phone and mobile device forensics.

Case Overview

The case arose when Arizona narcotics agents were told that the defendant was selling drugs.

An undercover agent began talking to the defendant by cell phone and arranged to buy methamphetamine from him. Below is the outcome of the efforts initiated by the undercover agent:

The first transaction took place as planned.

The agent again contacted the defendant and arranged another purchase. However, the woman who was supposed to deliver the drugs never showed up to complete the sale.

Another purchase was set up, and as a result, the defendant’s co-defendant (another person charged in the crime) sold the meth to the agent.

The next transaction did not go through because only the undercover agent arrived and no one met him to complete the sale.

The next transaction resulted in another codefendant meeting the agent and selling him rock salt rather than meth.

Two weeks later, the police arrested the defendant. Upon searching him, they found a bag of marijuana in his possession, as well as the cell phone with the same phone number used by the undercover agent to initiate the sale.

The defendant and his two codefendants were indicted on multiple counts, found guilty, and sentenced. The defendant appealed.

The appellate court was faced with the issue of whether the defendant, who was the seller in the drug transaction, was properly convicted of an A.R.S. § 13-3417(A) violation.

The primary question was whether or not there was sufficient evidence to prove that the defendant used a wire or electronic communication to “facilitate” or “conspire” to commit the felonies.

This question evolved around the fact that there was no other evidence presented involving wire or electronic communications by the defendant except for that of the buyer, the undercover agent.

The defendant also argued that the offenses that were charged in connection with the wire communications statute involved the sale of rock salt, an imitation substance that falls under A.R.S. chapter 34.1 for Imitation Drugs; not chapter 34 for Drug Offenses, or chapter 23, for Organized Crimes, Fraud or Terrorism, as stated in the language of the statute pertaining to the wire communications statute.

The state responded that the cell phone was used to communicate with the undercover agent about the sale of an unlawful drug.

Therefore, it was irrelevant that the drug was an illegal imitation substance provided after the communication.

The appellate court explained that they found no published precedent case that interprets the statute.

Therefore, in these situations the court looks to the plain language and the meanings of “facilitation” and “conspiracy” in its effort to interpret the statute.

An Arizona statute provides that “facilitation” is committed if someone who knowingly provides another with the means or opportunity to commit a crime. They do so, knowing that the other person is committing or intends to commit the crime.

An Arizona statute provides that a “conspiracy” is committed when three elements exist:

At least one of them or someone else will act in ways that constitute that crime; and
Someone agrees with one or more people, intending to promote or help in the committing of a crime; and
One of the people commits an overt act to further that crime.

The court used these statutory definitions of facilitation and conspiracy to interpret the wire communications statute.

It held that prohibited use of a wire or electronic communication is to knowing or with intent:

Provide someone else with the means and opportunity to commit a crime; or

To agree with someone else, that one of them, or another will act in ways that constitute a crime and commit an overt act to further the crime.

In several of the sales, the defendant was the seller and the agent was the buyer, and both were necessary to the transaction.

The defendant didn’t use the phone to facilitate or promote anyone else’s efforts to complete the sale, nor was their evidence that the defendant was conspiring with anyone else about the sale.

The defendant’s communications with the other people who delivered the drugs in certain transactions were in person.

In other transactions, the undercover agent came to buy drugs, but the defendant didn’t show up to sell them. Continue reading